Volume 2003

Number 1

Articles

The Internet’s smooth functioning depends on the domain name system (DNS), which allows users to enter an address into their browser and be directed to the appropriate web site or e-mail recipient. In 1998, the De-partment of Commerce (DoC) delegated effective control over the DNS to a private, not-for-profit corporation, the Internet Corporation for Assigned Names and Numbers (ICANN). Various aspects of ICANN have been heavily criticized by commentators. In this article, Professors Froomkin and Lemley address the previously neglected issue of whether ICANN and its policies violate U.S. antitrust law.

Professors Froomkin and Lemley begin by analyzing whether ICANN would be immune from antitrust scrutiny under the state action doctrine. This would be unlikely, they conclude, because there has been no clear articulation of policy nor active supervision by the government. The au-thors then consider the merits of four potential antitrust challenges: that the DNS and top level domains such as .com are essential facilities to which ICANN must give open access; that ICANN’s refusal to accredit registrars affiliated with alternative roots is an act of monopolization; that ICANN’s requirement that registrars adhere to a uniform dispute resolution policy for trademark disputes is an illegal cartel; and that VeriSign’s “Waiting List Service,” approved by ICANN, is an exclusive dealing arrangement with anticompetitive consequences. Additionally, since ICANN is not a government actor, the authors warn that those who lobby ICANN could also be liable for any antitrust law violations.

Professors Froomkin and Lemley conclude that delegating extensive policy-making authority to ICANN without providing any means of accountability causes unanticipated antitrust problems. If ICANN is subject to antitrust law, the authors assert, it will have to reevaluate its policies of excluding alternate roots and requiring registrars to adopt its uniform dispute resolution policy. Professors Froomkin and Lemley ultimately conclude that the U.S. government should either assume a more active role in setting domain name policy or, in the alternative, let the market operate unfettered.

Challenging traditional antitrust jurisprudence, Professor Alan J. Meese argues that the present structure of Rule of Reason analysis, applied pur-suant to Standard Oil v. United States, has become outdated. The Rule of Reason as currently applied by the courts rests upon neoclassical price theory, an economic paradigm that assumes that legitimate competition consists of unbridled technological rivalry, unconstrained by nonstandard contracts. Recently, however, the Supreme Court has begun to apply a competing paradigm—Transaction Cost Economics—when determining whether a contract is unreasonable “per se” or instead deserving of Rule of Reason scrutiny. Professor Meese argues that Transaction Cost Eco-nomics more accurately reflects market realities with the result that courts should also apply the teachings of this new paradigm when con-ducting Rule of Reason analysis.

Accordingly, Professor Meese concludes that courts should abandon the current three-part Rule of Reason inquiry in those cases where nonstand-ard contracts avoid per se treatment because they plausibly produce non-technological efficiencies by overcoming a market failure. In such cases, proof that a contract results in prices or other terms of trade different from those that preexist a restraint should not suffice to establish a prima facie case. Further, proof that contractual integration combats a market failure should, in any event, rebut a prima facie case, eliminating the need for courts to balance “anticompetitive harms” against procompeti-tive benefits. Finally, because the less restrictive alternative element of Rule of Reason analysis rests upon an assumption that any benefits of a nonstandard contract coexist with procompetitive effects, courts should abandon this element when analyzing restraints that purportedly combat market failure.

David C. Baum Memorial Lectures

While child welfare receives considerable media and scholarly at-tention, it is seldom treated as a civil rights issue. The child welfare sys-tem, however, is plagued by an alarming racial disparity, with black children especially representing a disproportionate share of the foster care population. In her lecture, Dorothy Roberts ties the child welfare system’s racial disparity to broader economic and racial inequities and argues that disparate state supervision and dissolution of black families inflict a racial harm. She concludes that viewing the disparity as a group-based civil rights violation calls for transforming the State’s focus from punishing impoverished parents to providing increased, noncoercive support for vulnerable families.

In Disarming the Private Attorney General, Professor Karlan de-scribes how the Supreme Court has created a significant regulation-remedy gap by critically undercutting one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney gen-eral. Professor Karlan identifies a series of techniques the Court has used to strip private individuals of their ability to enforce civil rights laws. On the one hand, the Court has expanded the scope of sovereign immunity under a new “Eleventeenth” Amendment jurisprudence and the scope of compelled arbitration under the Federal Arbitration Act. On the other hand, the Court has contracted the availability of implied rights of action and attorney’s fees. The overall effect of the Court’s decisions is to severely restrict enforcement of basic antidiscrimination require-ments.

Notes

At the forefront of modern debate over the ethical use of biotechnol-ogy is embryonic stem cell research. In this poignant analysis of its legitimacy, the author examines the history of this research in light of the United States’ policy favoring the protection of human beings over scien-tific progress. Stem cells, which can divide in culture to create special-ized cells in the human body, possess significant potential for curing dis-ease, particularly when taken from human embryos. However, as evidenced by the research atrocities committed under the Nazi regime, the benefits of human research do not come without a cost to humanity. Recognizing this, the later trial of these scientists produced the Nurem-berg Code, a set of natural law principles guiding future research on hu-mans that continues to influence health policy decisions. Drawing on this background, the author first considers the appropriate legal status for a human embryo. Biologically, the characteristics of a human embryo place it between human tissue and a constitutional person. Judicially, the answer is even less clear. The author analyzes case law in the context of abortion and in vitro fertilization, as well as classifications by the common law, state legislation, and the National Bioethics Advisory Commission, to conclude that a human embryo should be subject to the same legal and ethical restrictions as any other “human subject.” Accordingly, the author argues that embryonic stem cell research violates the ethical standards and purpose of the Nuremberg Code and should be banned by federal legislation. Such a prohibition will fulfill the societal policy choice of protecting potential life and vulnerable human subjects.

By now, any Internet user is familiar with the importance of the domain name registry connected to the site where they are headed. Each registry is entitled to distribute the domain names which precede the registry. The distribution of these domain names and registries, however, has been marred by legal disputes, especially in the area of trademark infringe-ment.

Ms. Wang addresses two main issues in her note: the legal implications of the inconsistent distribution schemes among domain registries and the legal battle over domain names between trademark holders and non–trademark holders. After a thorough history of the varying domain name distribution schemes, the author examines the application of California anti-lottery law and the Federal Trademark Dilution Act to the “.biz” domain name distribution scheme.

Wang argues that with the privatization of domain name distribution, the systems require regulation rather than expanded safe harbor provisions. She concludes that such regulation does not call for the enactment of new Internet-specific laws. Rather, existing state and federal laws appropri-ately address the concerns over fairness in distribution and continue to provide an adequate balance between concerns of trademark holders and the rest of the Internet community.

Number 2

Articles

In formulating environmental regulation, policy makers must often con-sider tradeoffs between current costs and benefits far in the future. One controversial technique for weighing future consequences is exponential discounting, which is used to convert future benefits into their equivalent present-day values. In this article, Professor Farber assesses the appro-priateness of using exponential discounting to place a present-day value on future harms, which often may have the effect of minimizing cata-strophic events far in the future. Professor Farber concludes that some form of discounting is appropriate, given that society cannot allocate fi-nite resources equally over an infinite number of future time periods.

Professor Farber reaches this conclusion through a model which relies on three simple assumptions. The first is that we are always willing to invest something to obtain a future benefit. The second is that the value of a future time period is the sum of its parts. And finally, that the relative appeal of permanent versus temporary solutions remains the same. Based on these assumptions, Professor Farber argues that exponential discounting necessarily follows. Professor Farber then considers several other factors that can affect this model, such as the perpetuation value of environmental resources and the use of hyperbolic discounting, where the discount rate itself declines over time.

In this article, Professor Robert Prentice takes issue with the trend of courts honoring contract-based securities fraud defenses and advocates the maintenance of a tort-based approach. Contrary to the arguments of contractarian theorists who argue that investors should be able to contractually negotiate their desired level of risk, and consequently that disclaimers and no reliance clauses should be honored, the article uses behavioral principles to undermine the assumption that humans ra-tionally contract.

Pointing to Carr v. CIGNA Securities, Inc., in which a contractual disclaimer of oral representations precluded a successful fraud suit, and Rissman v. Rissman, wherein a “no reliance” on oral representations clause was found dispositive, as examples of courts allowing contract-based defenses, Prentice argues that such defenses run counter to congressional intent. Securities fraud suits were intended to be tort-based and Congress intended to limit contract-based defenses.

As evidence of investors’ need for a purely tort-based securities law that cannot be contracted away, the article points to various behavioral instincts that advise against reading or questioning form contracts and support reliance on oral representations. The article then argues that such behavioral tendencies support not only preventing a contract-based defense for small investors but also eliminating the defense for sophisticated and institutional investors, who are equally susceptible to human behavioral tendencies.

In recognition that courts are reluctant to allow investors to break contractual promises and argue fraud, Prentice offers some behavioral tendencies that would compel investors to wrongly feel defrauded. Such tendencies are balanced by the tendency of juries to side with the defense. As alternatives to complete prohibition of contract-based defenses, Prentice suggests reviving the fraud exception to the parol evidence rule or requiring plaintiffs seeking to overturn no-reliance or merger clauses to support their position with objective evidence.

Drawing upon sociological and psychological studies of attitudes toward land, community, and environment, and on the social psychology of group conflict, social influence, and attitudinal change, this Article explicates the predicament and proposes a way out of it. The solution carries us beyond legal scholars’ traditional focus on public law and administration to reach, on one side, mainline environmentalism’s self understanding and community involvements and, on the other, new institutions for governance by landowners. (Economic incentives and gift-giving are also entailed.) The main institutional innovation is the landowner-initiated, landowner-controlled “special nature district,” with limited powers of regulation, assessment, and property acquisition. Special nature districts would act on local interests in conservation, but would provide ecological amenities sought nationally via collective contracting with public conservation agencies.

The academic upshot is a substantial research agenda for scholars of property and environmental law. The special nature district will (1) put to the test the burgeoning law and norms literature, (2) challenge scholars to invent models for jurisdictions fluid in their geography and competence, (3) focus attention on some heretofore peripheral issues of constitutional law, and (4) motivate empirical study of little known irrigation, drainage, grazing, zoning, and pest-control districts.

Book Review Essay

Review of Punitive Damages: How Juries Decide by Cass R. Sunstein, Reid Hastie, John W. Payne, David A. Schkade, and W. Kip Viscusi, with an introduction by George L. Priest, University of Chicago Press (2002).

Notes

In the late 1990s, many investors entered the stock market seeking for-tunes promised by an ever-rising market. Along with this democratiza-tion of the stock market, dedicated financial news television stations and publications sought a wider audience, often elevating securities analysts to celebrity status. Many new investors accepted such analysts’ research as impartial, unaware of analysts’ often divided interests.

The author examines the common conflicts of interest between securities analysts, investment bankers, and the companies analysts evaluate and considers their implications. The author then analyzes several possible solutions. While a complete separation of analyst research from invest-ment banking is overly broad, the author argues the current industry rules, regulations, and standards cannot be strengthened without poten-tially reducing the amount of analysis available. At the same time, the author argues that analysts affiliated with investment banks will inevita-bly be subject to some pressure to serve underwriters and companies ra-ther than investors. Consequently, the author recommends addressing the challenge of informing nonprofessional investors of sell-side analysts’ divided interests by characterizing their reports as sales literature or marketing material.

The National Labor Relations Act (NLRA) provides employees a number of protections. The statutory definition of “employee,” however, excludes some classes of workers, such as supervisors. At the same time, the term “professional” has been interpreted to fall within the protective scope of the NLRA. The exclusion of supervisors from the protections of the NLRA, coupled with the inclusion of professionals, has created a growing tension that has threatened the protections afforded to professionals. Two recent Supreme Court decisions, NLRB v. Health Care & Retirement Corp. of America and NLRB v. Kentucky River Community Care, Inc., have increased these tensions.

This note argues that employers, Congress, or the National Labor Rela-tions Board (NLRB) can resolve the tension created by the NLRA and the recent restrictions on the rights of professionals. The author contends that employers, potentially the most responsive group, will utilize tests set forth in the Kentucky River decision to further restrict the ability of pro-fessionals to organize under the NLRA. Similarly, Congress, although capable of taking decisive action, will continue to remain inactive. Therefore, the author argues that the most likely source of relief for pro-fessionals will be the NLRB. This note concludes, however, that the NLRB will address the issue through adjudication rather than rulemaking so that a definitive resolution will not be achieved.

Number 3

Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and sub-ordination to remain intact.

First, Professor Hutchinson examines the various meanings ascribed to equality, the difficulty in finding one meaning of equality under the Fourteenth Amendment, and how the Supreme Court has recognized that it should have a role in protecting subjugated groups. Second, the article presents Professor Hutchinson’s inversion thesis, which argues that the Court has stopped acting as the protector of historically disadvantaged groups and now provides historically privileged classes judicial solicitude. Finally, this article recommends that, as an alternative, the Court should utilize an antisubordination theory of equality whereby the Court bases constitutional decisions on their de-monstrable effect on politically vulnerable and historically oppressed classes.

Scholars disagree about the Executive Power Clause’s meaning. Some scholars claim that the clause does not vest any power but instead establishes the title and number for the apex of the executive branch. Others believe that the clause vests power but are unsure what domestic power it might vest. This article seeks to resolve the dispute by shedding light on the essential, historical meaning of executive power. Although “executive power” was often used to encompass a bundle of powers typically enjoyed by the executive branch, such as foreign relations control and the power to appoint, the phrase most often was used as a shorthand for the power to execute the laws. Indeed, the phrase “execu-tive power” comes from the principal or essential power of an executive—the power to execute the law.

Evidence from the eighteenth century reveals this essential meaning of executive power. European political theorists of that era declared that the executive power was the power to execute the laws. In America, state constitutions and political commentators employed this basic definition. Debates at the Philadelphia and state ratifying conventions also confirm this meaning, with framers and ratifiers repeatedly observing that the President could execute the law by virtue of the executive power. Finally, after ratification, statesmen from all three branches understood that the executive power was the power to execute the laws.

The founders understood that at least two subsidiary authorities flowed from the power to execute the law. Vested with the executive power, the president may execute any federal law by himself. Because the Constitution establishes that the executive power is his, the Constitution authorizes the president to execute any federal law. This constitutionally sanctioned power to execute the law explains why the president is widely regarded as an executive, i.e., an official who executes the law. Moreover, the executive power also enables the president to control other governmental officers who execute federal law. Because only the president has the executive power, others who execute the law derive their authority to execute not from the statutes that create their offices but from the president. This feature of the executive power reveals why the president is properly referred to as the chief executive. Other officials who execute the law are “executive” officers by virtue of their law execution role and because they are the chief executive’s means of executing the law.

Notes

The harsh reality of peer harassment of students based on perceptions of sexual orientation is an ever-growing problem in America’s K–12 schools. Bedell delves into the systemic problems in deterring this abuse and identifies that school officials are tacitly approving, vis-à-vis inac-tion, the harassment.

After identifying the problem, the author examines Title IX and finds—based in large part on courts’ interpretations of Title IX through prior interpretations of Title VII—unavailable to students a cause of action against school officials or peers for harassment on the basis of sexual orientation. Bedell also examines state law and finds inadequate protec-tion for students facing this harassment.

Bedell investigates the scope of bringing an action under § 1983 to assess potential for liability at the top of the food chain—the school offi-cials and school board. The author argues that school officials who do nothing to stop peer harassment based on sexual orientation are violating students’ rights under the Equal Protection Clause of the Fourteenth Amendment and could be personally liable under § 1983. The author recommends that states should pass comprehensive antidiscrimination and bullying statutes to end the anti-gay harassment of students by their peers in school.

This note analyzes whether the federal immunity statute may forbid states from prosecuting state crimes when the violation of state law was discov-ered through federally immunized testimony. Early cases dealing with the immunity statute held that federal immunity could not bar subsequent state prosecutions, but during the Warren Court era, the Supreme Court changed course, holding that federal immunity does bar subsequent state prosecutions.

In Printz v. United States, the Supreme Court held that commandeering a state’s executive branch violates the constitutional principle of dual sov-ereignty. This note applies the Printz rationale to the federal immunity statute, reasoning that a bar on state prosecutions based on federally immunized testimony would be a form of commandeering. It is preventive commandeering because the federal government prohibits state officials from enforcing state law.

To remedy the problem of preventive commandeering, states should amend their immunity statutes to bar state prosecutions based on federal-ly immunized testimony. This solution applies the theory of cooperative federalism, illustrating that it is sometimes more efficient for states to work with the federal government in areas of concurrent jurisdiction.

The protections of the First Amendment do not extend to certain types of speech such as obscenity, child pornography, and incitement of illegal conduct. Recently, Ohio convicted Brian Dalton for creating and pos-sessing a personal diary containing violent sexual fantasies involving children. He was found to have violated an Ohio statute prohibiting the creation or publication of obscene material involving minors even though there was no indication that he intended to publish the diary and no cer-tainty that he would engage in the described acts.

This note examines the application of obscenity, child pornography, and incitement law to the regulation of private, written materials. The author argues that current obscenity, child pornography, and incitement juris-prudence should not be expanded to cover the contents of the personal writings of pedophiles. Instead, the author notes that states can use civil commitment to protect the public from many sexual predators whose writ-ings evidence a strong propensity to commit violent sexual acts.

Number 4

Articles

In 1995 Congress passed the Private Securities Litigation Reform Act (the PSLRA or the Act) to address abuses in securities fraud class ac-tions. In the wake of Enron, WorldCom, Adelphia, and other high pro-file securities frauds, critics suggest that the law made it too easy to es-cape liability for securities fraud and thus created a climate in which frauds are more likely to occur. Others claim that the Act has largely failed because it did little to deter plaintiffs’ lawyers from filing nonmeri-torious cases. This article employs a database of the 1449 class actions filed from 1996 through 2001 to explore whether the Act achieved several of its primary goals—discouraging the filing of nonmeritorious suits, re-ducing litigation risk for high technology issuers, and reducing the “race to the courthouse” whereby class actions were filed soon after significant stock price declines, apparently with very little prefiling investigation.

The picture that emerges from studying these data is that the PSLRA did not work as intended. This article demonstrates that as many, if not more, class actions are filed after the Act as before. High technology is-suers remain at significantly greater risk than issuers in other industries. There is statistically significant evidence, however, that suggests that the Act improved overall case quality at least in the circuit that most strictly interprets one of the Act’s key provisions, a heightened pleading stand-ard. The data also demonstrate that Congress did not achieve its goal of increasing the filing delay in class actions. Actions are filed as quickly now as they were before the Act’s passage. Nonetheless, that too may provide indirect evidence that plaintiffs’ attorneys are selecting more ap-parent cases of fraud that require less prefiling investigation.

With multiple Supreme Court rulings in 2002 and Illinois Governor George Ryan’s pardons and commutations in 2003, capital punishment in America is receiving a new wave of increased scrutiny. One aspect of this scrutiny deals with wrongfully convicted death row inmates such as Rolando Cruz and Earl Washington. In many of these cases, part of the evidence upon which the defendants were convicted was a police-induced confession. In this article, Professor White proposes safeguards to en-sure the reliability of confessions introduced in capital cases. Part II re-lates to mentally handicapped suspects. White illustrates the need for change in this area by discussing two “DNA-cleared” cases in which mentally handicapped defendants gave false confessions, and then pro-poses specific recommendations. In part III, White identifies three prob-lematic interrogation practices and proposes safeguards designed to re-strict interrogation practices. Part IV argues for steps to improve methods of fact-finding in cases where the reliability of a capital defend-ant’s police-induced confession is an issue. Finally, part V makes six specific recommendations to legislatures or state courts for safeguards relating to police-induced confessions in capital cases.

Notes

The sharing of knowledge, specifically through the evolution of li-brary systems, is an essential part of modern democracy and is governed in America by the First Amendment and by copyright law. In recent years, however, the circulation of e-books—text in electronic format read via specialized equipment and software—has created a potential chal-lenge to traditional notions of copyright protection. In this note, the au-thor analyzes the compatibility of the e-book with the American library system as it currently exists through empirical data on the use and expert opinion of e-books in public and academic libraries. Heralded in previ-ous years as the next major advance of the “reading experience,” the e-book has not lived up to expectations and is often criticized because of the many usage limitations imposed by digital-rights management software. Many questions regarding the legality of this type of software and its permissible manipulation are currently unanswered. This is perhaps best evidenced by the case of the Russian computer company Elcomsoft, which was criminally prosecuted under the Digital Millennium Copyright Act for developing software capable of “cracking” the protection on e-books. The company was ultimately cleared. The debate over the interaction between this new form of book and copyright law has undoubtedly impacted public perception of e-books. Hence, the author conducted empirical research to determine the effect of such unresolved issues by posing questions to different types of libraries throughout the country. From this research, the author concludes that e-books still possess some potential in American libraries if the technology becomes more focused on readers and if electronic publishers relax some of the use restrictions currently afforded to them by law.

Prosecution of domestic violence offenders is one of the most important tools of deterrence against the domestic violence epidemic in the United States. Domestic violence prosecutions, however, are notoriously diffi-cult because of several unique circumstances, including lack of witnesses to the offense and reluctance of victims to testify against their abusers.

Several commentators have suggested an evidence rule for domestic vio-lence cases that takes these unique circumstances into account. This evi-dence rule would allow prosecutors to admit other acts of domestic vio-lence as evidence that the defendant has a propensity to commit domestic violence. There is little doubt that such a rule would greatly aid prosecutors, but it is controversial because it violates the traditional evidentiary prohibition against propensity evidence. This prohibition, however, is not absolute. The Federal Rules of Evidence allow propensity evidence to be admitted in prosecutions for sexual assault and child molestation. Propensity evidence should be admissible in domestic violence cases, the author argues, for reasons similar to those for admitting propensity evidence in sexual assault cases.

Only two states—California and Alaska—have adopted statutes allowing propensity evidence in domestic violence cases. The author analyzes the impact of these statutes, concluding that the statutes provide a valuable tool in domestic violence prosecutions. She also analyzes the positions of several other states on the propensity evidence issue, concluding that statutes allowing for propensity evidence are necessary for states to effec-tively hold batterers accountable for their actions.

Number 5

Symposium: Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual?

The attorney-client relationship typifies a fiduciary relationship. At a minimum, attorneys are required to deal fairly and reasonably with their clients while avoiding any inclination to act in a self-interested manner. Nowhere is the tension between a lawyer’s self-interest and their fiduci-ary obligations to a client greater than in the area of fee structures.

Contingency fees were developed to allow clients representation when they otherwise may not be able to afford such representation, while com-pensating a lawyer in a manner commensurate with the degree of risk presented by the case. Despite the inherent self-interest encountered by lawyers when presented by potentially large contingency fees, lawyers are in the unique position to gauge the risk presented by a particular case and counsel their clients accordingly. Questions have arisen whether some in the contemporary contingency fee bar have struck the balance too far in favor of their own self-interest, rather than in their client’s best interest, when failing to present alternative fee structures. These ques-tions have poignantly come to light after the extraordinarily large fees demanded following the recent tobacco litigation. Are lawyers honoring their fiduciary obligations to their clients?

Professor Brickman urges that the balance has been struck clearly in fa-vor of lawyers’ self-interest. Beginning with a detailed examination of both the origins of fiduciary obligations and previous efforts at establish-ing a lawyer’s duties in presenting alternative fee structures, Brickman lays the foundation of the modern contingency fee structure and a law-yer’s corresponding fiduciary obligations. Brickman then turns to the role of the Ethics 2000 Commission in clarifying a lawyer’s obligations, examining the Commission’s changes to the Comment to Model Rule 1.5 addressing contingency fees. He finds that, rather than stem the tide of what he identifies as widespread contingency fee abuse and disregard for fiduciary obligations, the Ethics 2000 Commission not only removed well-established protections for clients, but facilitated abuse in the con-tingency fee system. Despite early efforts indicating that the Commission would place a renewed emphasis on the reasonableness of contingency fees, Brickman finds the Commission ultimately found that increased scrutiny of contingency fees posed too great a threat to the status quo. He concludes that the changes fly in the face of an attorney’s historical fiduciary obligation and materially diminishes the protections afforded to contingency fee clients.

In this article, the authors argue that the use of secrecy agreements and practice restrictions in settlement contracts should be prohibited not only by the ethics rules, but also by criminal and civil law. The authors begin by discrediting four arguments that are traditionally employed to support the use of secrecy agreements and practice restrictions. They then argue that the use of secrecy agreements and practice restrictions generate substantial costs, but do not secure any legitimate benefits that could not be attained by other, less costly means. The authors also ex-plain how the problems caused by secrecy agreements and practice re-strictions are particularly severe in the class action context.

A number of commentators have argued that the Supreme Court’s decision in Nix v. Whiteside, 475 U.S. 157 (1986), has laid to rest the constitutional issues raised by Rule 3.3. The author argues that, when properly analyzed, Nix should be viewed as a constitutional outlier. The facts of Nix present almost the weakest case imaginable for finding a Sixth Amendment violation, and the decision does not address Fifth and Fourteenth Amendment issues. In Nix attorney Robinson remonstrated with his client and successfully prevented him from testifying falsely. His client did in fact take the stand, testified truthfully, and presented the substance of his claim of self defense. In other cases, where defense counsel goes beyond persuasion to prevent a defendant from testifying falsely or when the lawyer’s actions prevent the client from testifying at all, constitutional violations may well occur.

The media attention and ensuing debate over Enron’s collapse have gener-ated several troubling responses. The author submits that there has been a hasty and unsupported judgment by the general public and prominent peo-ple in law and academia that lawyers violated ethical obligations and broke the law with their representation of Enron. Many of the proposed reforms in the wake of the Enron collapse are troubling because they would vitiate the confidentiality clients expect from lawyers. Both the replacement of state rules and regulations regarding lawyer’s ethics and the proliferation of multiple sources of rules of professional conduct to scale back client con-fidentiality are derided as bad ideas. Furthermore, suggestions by the Chairman of the Securities and Exchange Commission that lawyers should reform the manner in which they advocate for corporate clients and reorder the way a lawyer deals with such clients are unwarranted and the product of imprecise thinking.

The author takes particular issue with the suggestions of Professors Kon-iak and Cramton, presented orally at this symposium, that ethical and le-gal violations of lawyers abounded in the representation of Enron. The author first argues that Professors Koniak and Cramton have falsely overstated that lawyers have been “found” legally responsible for nu-merous financial scandals over the past half-century. He then argues that the professors’ entire premise is based on the unsupported conclu-sion that where there is financial fraud, the company’s lawyers played some part. The author counters that the performance of individual law firms representing Enron has not revealed to this point any unethical or illegal behavior. Finally, the Enron investigation has uncovered no evidence of an epidemic of misconduct among lawyers, as others have suggested.

While much information pertaining to the earnings and financial affairs of law firms is routinely publicly disclosed, information regarding a firm’s compensation system or the tenure of its partners is not generally released. Mr. Bernstein’s article suggests that clients should seek this in-formation because it directly affects a lawyer’s incentives to act in a cli-ent’s best interest. Moreover, the author suggests that Model Rule 1.7 may, under certain circumstances, require the disclosure to clients of partnership compensation arrangements, but that the Rule should speak to the issue with greater clarity.

The author discusses the relationship between law firm compensation sys-tems and partner incentives to serve the firm’s clients and points out that the so-called eat what you kill system of partner compensation may give rise to conflicts of interest within the meaning of Rule 1.7 by depriving the partner of the benefit of the firm’s client diversification. The author illustrates his point by describing one of the circumstances in which a partner who does not have the benefit of such diversification will have an incentive to act contrary to the best interest of the client in the course of rendering advice concerning the sale of a business.

The author concludes with a suggestion that perhaps the American Bar Association should consider a rule requiring that law firms disclose their partner compensation systems to their clients.

Who makes the decisions within the lawyer-client relationship? This question arises frequently in the course of representation, but it is seldom directly addressed. Because of the position of the lawyer, the client is not consulted on many decisions, a situation that may be more pronounced for individuals who are less experienced in dealing with lawyers.

This article takes a unique approach in analyzing the effects of the Model Rules of Professional Conduct on the lawyer-client relationship, as Professor Lubet presents the heuristic of The Benevolent Otolaryngologist. Using the heuristic as a basis for analyzing the ends/means distinction found in Model Rule 1.2, Professors Burns and Lubet analyze how the current version of the Model Rules and the proposed Ethics 2000 rules affect the division of decision-making authority. By noting the differences between the effects of the rules on a familiar decision made within a doctor-patient relationship and a decision made within the context of the lawyer-client relationship, the article attempts to take the debate into a context without our usual preconceptions.

Problems arise primarily when the lawyer and the client are faced with difficult decisions regarding the means of achieving a particular objective. After an analysis of the current rules, Professor Burns concludes that ethical decisions regarding the means of representation will continue to be made by lawyers, who rely on their individual notions of good practice, though clients have an argument under the current rules that many decisions as to “means” should be theirs. Professor Lubet analyzes the rules proposed by the Ethics 2000 Commission and notes the inherent inadequacy of the proposal, which would create a situation in which the client must either face the withdrawal of counsel or choose to discharge the lawyer when the two parties disagree over a method or tactic that is fundamental to the representation. Professor Lubet notes the likelihood that this problem is more likely to be encountered by individual clients, who face more severe consequences than their corporate counterparts. Professor Burns concludes by noting that the Ethics 2000 proposed changes to the Model Rules are not as likely to have an effect on the situation as are local legal cultures.

The Ethics 2000 Commission set out to retain the primary disciplinary and regulatory function of the Model Rules of Professional Conduct and to “fix” provisions only where they were “broken.” The Commission drew on the insight and expertise of an extraordinarily wide assortment of interested parties. But, Susan Shapiro argues, their input on what in the Model Rules was working or broken suffers from what social scientists call “selection bias.” This pool of self-selected advisors and commentators, however diverse, is unrepresentative of the legal profession as a whole and the varied settings in which lawyers practice and in which professional responsibility is enacted day to day. Participants had a stake in the debate—axes to grind, constituents to serve, interests or ideo-logies to promote. This unrepresentative patchwork of self-selected informants, however extensive the network or prescient its members, could not possibly substitute for solid empirical evidence on the actual practices of lawyers.

Shapiro argues that empirical research might have informed the Commission not only which Model Rules are working and which are not, where they work best and why, and how to engineer incentives for compliance or self-regulation, but also have provided some guidance about how to fix those rules that are “broken” and at what costs and consequences.

Moreover, Commissioners might have assessed the potential impact of changing an ethics rule by examining empirically the experience of a jurisdiction in which the prospective rule change had already been implemented. Drawing on her research on how Illinois law firms deal with conflicts of interest, Shapiro illustrates how rigorous empirical data might have been used to inform the contentious debate over screening. The issue is not whether clients can be protected adequately if firms are allowed to screen a lawyer hired laterally from another firm without seeking client consent. Instead, the data suggest, one effect of liberaliz-ing the law may well be that, ironically, clients are better protected and confidentiality even more inviolate in jurisdictions that allow screening without consent than those that do not.

Multijurisdictional practice has become the norm, rather than the exception. Professor Needham analyzes how the increase in multijuris-dictional practice is affected by various legal regulations and how these regulations need to be changed to provide for greater ease in multijuris-dictional practice. Noting that other professions allow “consultants” to work throughout the United States without geographic restrictions, Pro-fessor Needham comments on how the proposals initiated by the Ameri-can Bar Association’s (ABA’s) Multijurisdictional Practice Commission and the ABA Ethics 2000 Commission present an opportunity for change. While wholesale changes are just beginning to occur, many states have begun to follow the trend to regularize, acknowledge, and permit multi-jurisdictional practice.

The ability of lawyers to participate in multidisciplinary practices is a complicated issue, which gives rise to many structural and ethical problems. In the article below, Dean Powell critiques the New York State Bar Association’s attempt to resolve these problems. Through a comparison of the ABA’s Commission on Multidisciplinary Practice Report with the NYSBA’s Special Committee on the Law Governing Firm Structure and Operation, Dean Powell argues that the NYSBA attempt is without ingenuity and fails to give a fresh approach to the decade-old debate on multidisciplinary practice. Dean Powell then concludes that the ABA’s approach is the only scheme that comprehensively regulates all lawyers who are licensed to practice, regardless of the context or con-tent of their work.

The ethics rules that lawyers live by order behavior and provide an archi-tecture through which they perceive issues and problems. In this article, Professor Cohen addresses an area of professional responsibility that has thus far received inadequate attention from either the Model Rules or the Model Code and was not improved upon significantly by the Ethics 2000 revisions. Specifically, Professor Cohen posits that a “general blind spot in the ethics rule architecture” exists by virtue of the failure of the ethics rules to deal in a comprehensive and systematic way with the problem of multiple lawyers representing, or owing some fiduciary obligations to, a client in a particular matter.

The article begins by laying the foundation to think about multilawyered problems. Professor Cohen introduces a taxonomy based on the variety of structural and legal relationships among lawyers and the client. He then proceeds to examine how, in a situation where multiple lawyers are present, the multiple lawyer relationship affects, and is affected by, the professional responsibilities of the lawyers and the fundamental concerns of the law of lawyering—competence, confidentiality, and conflicts of in-terest. Professor Cohen applies an approach he previously developed based on the potential for collusive behavior in agency relationships to il-lustrate how the presence of multiple lawyers can exacerbate problems already inherent in this situation. Professor Cohen concludes with the hope that with the architecture developed in this article, multilawyered problems can receive the examination and coverage not accomplished by the Ethics 2000 revisions.

In this article, Professor Nancy Moore explores ethical issues impli-cated by class action litigation. She begins by pointing out that neither the Model Code of Professional Responsibility nor the Model Rules of Professional Conduct deal specifically with the ethics of class action law-yers. The author, who acted as Chief Reporter of the Ethics 2000 Com-mission, argues that the Commission’s decision not to draft rules directly addressing the ethics of class action litigation was appropriate. Focusing on the problem of conflicting interests, she argues that the confusion surrounding the ethics of class action lawyers can be significantly reduced by recognizing, first, that the class itself is the client and, second, that much of what are currently described as “conflicts of interest” were never meant to be addressed by traditional conflict-of-interest doctrine. Even if there are some situations in which relaxation of the ethics rules may be justified in order to accommodate class actions, these situations are better addressed by case law interpreting Rule 23 of the Federal Rules of Civil Procedure. The author argues that in ad-dressing adequacy of representation issues under Rule 23, courts should still take into account many of the principles and concerns motivating Model Rules of Professional Conduct Rule 1.7.

In this article, the author predicts five institutional changes in the realm of Professional Responsibility that are likely to occur in the twenty-first century. First, he suggests that the enforcement of professional ethics will likely become more nationalized. Traditionally, each state has been responsible for enacting and enforcing its own ethic rules. However, with the increase of national, multistate, and international practice, lawyers should expect a more uniform system of professional regulation in the future and a greater degree of negotiation among the states and the federal government concerning the types of regulation that are appropriate.

Second, the author suggests that disciplinary systems likely will become more transparent. Traditionally, policy making in the disciplinary process and information regarding enforcement have been kept from public scrutiny. Opening the process would help develop respect for the rules and would improve enforcement techniques.

Third, he suggests that local bar associations will reevaluate the functions they perform and will acknowledge the multiplicity of the goals they seek to achieve. In the process, they will recognize that these goals are sometimes inconsistent. The long-term result will be that local bars will rely more on other regulators to restrain lawyer misconduct. They will shift their priorities towards functions, including lawyer assistance, that bar associations are uniquely suited to fulfilling.

Fourth, the author predicts changes in the licensing and admission of lawyers. Traditionally, all lawyers have been treated the same for purposes of admission, regulation, and discipline. In the future, it is likely that a system of specialty examination and licensing will provide official methods of differentiating among lawyers.

At the same time, the author suggests that the definition of the practice of law will result in a decrease in some forms of licensing. Greater recognition of the interrelationship between legal and nonlegal work will open the door to negotiation among the professions regarding who may provide services tangential to law. Opening the door to lay-providers may also be a necessary reaction to the growing, unsatisfied need of the poor and middle classes for law-related services.

The ethical obligations of a criminal defense lawyer whose client intends to or has testified falsely have been the subject of debate for more than a quarter century, yet they remain unclear. In this article, the author analyzes the impact of revised Model Rule 3.3 on this issue. The author concludes that the revised rule has failed to provide clear answers to the three major questions that arose under prior Rule 3.3: When does a lawyer have sufficient knowledge to take action under the rule? What should a lawyer do if the lawyer learns of the client’s intention before the testimony is offered? To what extent do constitutional requirements trump a lawyer’s ethical obligations under Rule 3.3?

The author argues that the revised rule poses a number of interpretative issues. His surprising conclusion is that the revised rule, along with developments that have taken place in the states, will result in use of the narrative solution to a much greater extent than the drafters may have in-tended.

A number of commentators have argued that the Supreme Court’s decision in Nix v. Whiteside has laid to rest the constitutional issues raised by Rule 3.3. The author argues that, when properly analyzed, Nix should be viewed as a constitutional outlier. The facts of Nix present almost the weakest case imaginable for finding a Sixth Amendment violation, and the decision does not address Fifth and Fourteenth Amendment issues. In Nix, attorney Robinson remonstrated with his client and successfully prevented him from testifying falsely. His client did in fact take the stand, testified truthfully, and presented the substance of his claim of self-defense. In other cases, where defense counsel goes beyond persuasion to prevent a defendant from testifying falsely or when the lawyer’s actions prevent the client from testifying at all, constitutional violations may well occur.

Prosecutors have different responsibilities and serve different roles than other attorneys. Professor Green argues that the prosecutor’s duty to “seek justice” should give rise to a host of particular professional re-sponsibilities that are different from those of other lawyers. However, the Ethics 2000 Commission declined to augment prosecutors’ special re-sponsibilities and did not expand any of the existing provisions of Model Rule 3.8. Professor Green explores the rationale for the Commission’s inaction, and concludes that the inaction cannot be explained on substantive grounds but rather was motivated by political and procedural considerations. He believes that new rules governing prosecutorial ethics should be drafted, with substantial input from the judiciary, because Rule 3.8 is not the best of all possible rules of prosecutorial ethics.

Note

Attorneys’ surreptitious recording of conversations with clients, adverse parties, witnesses, judges, and other attorneys is a complicated and controversial ethical issue. It pits the convenience and security of individual lawyers against the integrity of the legal profession. In 1974, ABA Formal Opinion 337 strongly condemned the act of surreptitious recording by nongovernmental attorneys as unethical. Several states followed Formal Opinion 337’s directive, allowing recordings only in limited circumstances. Other states chose not to strictly follow Formal Opinion 337’s prohibition, but rather to examine a broad array of factors in determining whether or not an attorney’s secret recording rose to the level of an ethical violation under the circumstances.

In 2001, the ABA issued Formal Opinion 01-422, withdrawing Formal Opinion 337, the basis for many jurisdictions’ recording policies. Opinion 01-422 held that the act of surreptitiously yet lawfully recording a conversation is not inherently deceitful. Under Opinion 01-422, as long as local laws permit nonconsensual recording, the Model Rules generally will not be violated by recording conversations without the consent of other parties. Opinion 01-422 provides, however, that a law-yer cannot falsely state that he is not recording a conversation, and recommends against covertly recording a client.

This note analyzes different jurisdictions’ approaches to the nonconsensual recording problem. These approaches range from the general embodiment of Formal Opinion 337’s strict recording prohibition, in jurisdictions such as Colorado and South Carolina, to the broad “context of the circumstances” approach followed by Mississippi and similar approaches in Maine and Wisconsin ethics opinions. In addition to comparing the nuances of these jurisdictions, this note addresses the possible ramifications of Opinion 01-422. The author argues that Opinion 01-422 may be a step in the wrong direction, and may not sufficiently safeguard the integrity of the legal profession. Therefore, the author favors Formal Opinion 337’s recording prohibition, allowing only a narrow exception for an attorney’s recordings made under the guidance of law enforcement personnel in an ongoing criminal investigation.